Academic and Judicial Influence Among Elite Criminal Law and Procedure Scholars

In the Supreme Court's recent 5-4 decisions in Lafler v. Cooper and Missouri v. Frye,  the Supreme Court, 5-4, invalidated trial convictions because the lawyers rejected favorable plea offers with no plausible legal basis.  The opinions in these cases relied on scholarship from law professors, including Albert Alschuler, Rachel Barkow, Stephanos Bibas, Jerold Israel, Orin Kerr, Nancy King, Wayne LaFave, John Langbein, Robert Scott,  William Stuntz, and Stephen Thaman. 

For me, these cases brought to mind Chief Justice Roberts' famous mockery of the contribution of scholars to actual law: “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in eighteenth-century Bulgaria, or something. . . .” But at least in criminal law and procedure, the field I know best, Lafler and Frye seem like par for the course; the idea that good scholars are irrelevant to courts and and legal doctrine struck me as mistaken. I recognized that a rigorous and sophisticated empirical study would be very valuable, and could conclusively prove or refute my hypothesis.  Instead of that, though, I decided to do some casual noodling, which I report here. 

I looked at the 21 most cited criminal scholars according to Brian Leiter. The Leiter study looks at faculty who are most cited in law reviews from January 1, 2005 to January 15, 2010. By examining those who were most influential in recent law review citations, this study captures those now in fashion in the academy. All of these 21 teach at highly ranked schools (all are in the top 50, and 19 are in the top 20), where one might expect highbrow academic culture prevails. And although this group skews toward seniority, more are in their 30s, 40s and 50s (11) than are in their 60s and 70s (10), which means that most, or maybe all, spent the bulk of their careers in the era dominated by fancypants scholarship, rather than, say, treatisewriting and descriptive work.  Judge Harry Edwards, for example, wrote his celebrated article about the irrelevance of legal scholarship in 1992, and he described a problem with legal scholarship he had observed "for some time now", not a brand new development.

By my count, 15 out of the 21 have had at least one article one book or article cited in at least one opinion in the U.S. Supreme Court.  It seems to me that having an article cited in the Court demonstrates that a scholar's work is useful to the legal system.  Six were not cited in the Supreme Court--I won't name names, because I might have missed something in my searches.  But each of those six were cited in lower federal courts and state appellate courts from dozens to hundreds of times.  Because lower courts are more constrained, a citation there is, if anything, even more suggestive of useful work about conventional legal subjects than is a citation in the Supreme Court. And while serving as law professors, several of those six litigated in the Supreme Court either as counsel or amicus curiae.  They also have performed other major service in the legal system, with national bar groups or state or federal government commissions.  While many of them have written, on occasion or regularly, "high theory" articles, not a single one of them could fairly be regarded as ethereal or irrelevant.

These folks, at least, not only are popular among other academics, but are also taken seriously by, and are influential in, courts and in other aspects of the legal system as well.  They do law in the same sense that the Supreme Court does law. The tentative conclusion I draw is the umpire made a bad call this time.  Surely there is a bottom fraction of the professoriate, and we--I mean they--write articles few scholars or judges find useful, both because of the topics chosen and their execution. But good criminal scholars, because of their intellectual ability, diligence and the relevance of their subjects, are read and engaged by both courts and other scholars.